Habitats Regulations Assessment of New Forest National Park Local Plan 2016-2036 Addendum to review implications of CJEU judgment in Case C- 323/17 People Over Wind and Sweetman v. Coillte Teoranta for the HRA at Submission Draft stage Prepared by LUC July 2018 Project Title: HRA of the New Forest National Park Local Plan 2016-2036 Client: New Forest National Park Authority Version Date Version Details Prepared by Checked by Approved by 3.0 4/7/2018 Final Jon Pearson Jon Pearson Jeremy Owen Review of HRA of New Forest NPA Local Plan re People Over Wind Last saved: 04/07/2018 10:48 Habitats Regulations Assessment of New Forest National Park Local Plan 2016-2036 Addendum to review implications of CJEU judgment in Case C-323/17 People Over Wind and Sweetman v. Coillte Teoranta for the HRA at Submission Draft stage Prepared by LUC July 2018 Planning & EIA LUC LONDON Offices also in: Land Use Consultants Ltd Registered in England Design 43 Chalton Street Bristol Registered number: 2549296 Landscape Planning London Edinburgh Registered Office: Landscape Management NW1 1JD Glasgow 43 Chalton Street Ecology T +44 (0)20 7383 5784 Lancaster London NW1 1JD GIS & Visualisation [email protected] Manchester FS 566056 EMS 566057 LUC uses 100% recycled paper Contents 1 Introduction 1 Background 1 HRA work undertaken to date for the New Forest NPA Local Plan 2016-2036 1 2 Approach to the review of the HRA 3 3 Review of the HRA screening 4 4 Appropriate Assessment 6 Urban edge effects 6 Recreation pressure 8 Changes in water quantity 12 Changes in water quality 15 5 Summary and conclusions 24 Tables Table 3.1 Reliance of HRA screening on avoidance or reduction measures to rule out likely significant effects 4 Table 3.2 Revised HRA screening conclusions in absence of mitigation 5 Table 4.1 Proximity of site allocations to European sites or watercourses connected to these 19 Table 5.1 Findings of HRA review and amended conclusions 24 1 Introduction Background 1.1 This addendum report has been prepared in response to a request from New Forest National Park Authority (NFNPA) that LUC reviews the Habitats Regulations Assessment (HRA) of the New Forest National Park Local Plan 2016-2036 in light of the 12 April 2018 Court of Justice of the European Union (CJEU) judgment in the case of People over Wind and Peter Sweetman v Coillte Teoranta1. The Examiners of the Local Plan have requested that the National Park Authority carries out such a review. 1.2 The CJEU judgment ruled that Article 6(3) of the Habitats Directive2 must be interpreted as meaning that mitigation measures (referred to in the judgment as measures which are intended to avoid or reduce effects) should be assessed within the framework of an Appropriate Assessment and that it is not permissible to take account of measures intended to avoid or reduce the harmful effects of the plan or project on a European site at the screening stage of HRA. The reasons given for this are: “Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constitutes, however, an essential safeguard provided for by the directive. In that regard, the Court’s case-law emphasises the fact that the assessment carried out under Article 6(3) of the Habitats Directive may not have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site concerned…” 1.3 The precise wording of the ruling is as follows: “Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that, in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site.” 1.4 As the planning consultants commissioned to undertake the HRA on behalf of NFNPA, LUC is not able to provide a legal opinion. Instead, we have provided below an opinion on the implications of the CJEU judgment for the HRA work undertaken to date on the Local Plan, based on our professional expertise in HRA and our interpretation of the CJEU judgment, and amended it as deemed necessary. HRA work undertaken to date for the New Forest NPA Local Plan 2016-2036 1.5 The HRA process for the New Forest NPA Local Plan began with the production in April 2016 by LUC of a non-statutory HRA Scoping Report, which was jointly prepared with New Forest District Council (NFDC) to inform the approach to HRA of both the NFNPA Local Plan and the NFDC Local Plan Part 1. The proposed approach to HRA set out in this joint scoping document was subject to 1 Available from http://curia.europa.eu/juris/document/document.jsf?docid=200970&doclang=EN 2 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora Habitats Regulations Assessment of New Forest National 1 July 2018 Park Local Plan 2016-2036 consultation with Natural England, the Royal Society for the Protection of Birds (RSPB), Hampshire and Isle of Wight Wildlife Trust (HIWWT), Dorset Wildlife Trust, Wiltshire Wildlife Trust, and NFDC during April-May 2016. 1.6 In August 2016 LUC then prepared an HRA Discussion Document that responded to consultation comments on the HRA Scoping Report and provided initial observations on the potential for development proposals in NFNPA’s Draft Local Plan to have adverse effects on European sites, as well as commenting on mitigation available from the emerging Local Plan and from NFNPA’s existing habitat mitigation strategy. This supported further informal consultation with Natural England. 1.7 In January 2018, an HRA report was produced by LUC to accompany consultation on the Submission draft of the Local Plan. An air quality assessment3 and linked ecological assessment4 carried out by third party consultants and reported on separately also formed part of the HRA, providing the Appropriate Assessment of air quality effects for both the New Forest National Park and New Forest District Local Plans. 1.8 In May 2018, LUC prepared an addendum to the HRA of the Submission draft Local Plan to provide: an assessment of the implications for the HRA of the modifications to the Submission draft Local Plan being proposed by the Authority prior to Examination; and responses to representations received by the Authority from Natural England relating to the HRA of the Submission draft Local Plan. 1.9 This current document now provides a review of the HRA of the Submission draft HRA (incorporating the linked Appropriate Assessment of air quality effects), as amended by NFNPA’s proposed modifications. 3 Air Quality Consultants (2017) Air quality input for Habitats Regulations Assessment: New Forest – Draft Report provided 21 December 2017 4 BSG Ecology (2018) Ecological Consultancy Advice on Air Quality Risks – Draft Report provided 3 January 2018 Habitats Regulations Assessment of New Forest National 2 July 2018 Park Local Plan 2016-2036 2 Approach to the review of the HRA 2.1 The HRA for the Submission draft Local Plan5 has been reviewed as follows to determine whether the HRA Screening relied on avoidance and reduction measures to rule out the need for Appropriate Assessment, contrary to the direction of the CJEU judgment: If the HRA identifies that the plan is likely to have a particular type of significant effect on European site(s) and their designated features and an Appropriate Assessment of the plan has been carried out in relation to that type of effect then no reliance was placed on mitigation measures to rule out the need for Appropriate Assessment and therefore no further action is required. If the HRA includes information that concludes that there are no pathways for the policies/allocations in the plan to cause a particular type of likely significant effect on European site(s) and their designated features then no reliance was placed on mitigation measures to rule out the need for Appropriate Assessment and therefore no further action is required. If the HRA includes information that identifies particular types of likely significant effects on European site(s) and their designated features but concludes that they can be mitigated through avoidance or reduction measures (and does not go on to the Appropriate Assessment stage) then action is required to amend the HRA in line with the CJEU judgment. In this case the screening assessment has been revised in line with the methodology required by the CJEU judgment, any required Appropriate Assessment has been carried out, and consideration has been given to whether the Appropriate Assessment necessitates any modifications to the plan, in light of the avoidance and reduction measures already identified and secured. 2.2 As explained in the HRA of the Submission draft Local Plan, the potential was identified for the following types of effects on European sites: direct loss or physical damage to European sites; loss or damage to offsite supporting habitat; urban edge effects; changes in air quality; traffic collision risk; recreation pressure; changes in water quantity; changes in water quality.